License plate reader stirs ire

Residents concerned over privacy issues

February 8, 2014

BUCKHANNON - Buckhannon City Council has directed its chief of police to invite an expert on license plate readers to make a presentation at a future council meeting regarding the potential uses and abuses of the equipment.

Since December, the Buckhannon Police Department's use of one LPR unit in a police cruiser operated by one officer - Patrolman First Class William Courtney - has generated controversy and privacy concerns throughout the community.

At City Council's meeting Thursday, city resident Jeremy McGowan delivered an in-depth presentation on the issue, claiming that the use of the equipment violates citizens' First and Fourth Amendment rights. McGowan's presentation spurred an hour-long heated debate among Council members, Police Chief Matt Gregory, the city's attorney and private citizens.

LPRs are programmed to recognize license plates, take photographs of them and then transfer the sequence of letters or numbers into a digital signature. The LPR then compares the license plate number to a "hot list" of license plates that have been flagged by the West Virginia State Police for a variety reasons related to crime-solving, including stolen license plates and AMBER Alerts.

McGowan, however, said he believes the state Department of Homeland Security "pushed" the technology onto the city of Buckhannon so the agency can collect data about Buckhannon residents.

"My fear is not the use of the equipment for the assistance of the officer in the car to identify stolen vehicles, AMBER Alerts or at-risk citizens," McGowan told council. "I believe the use of ALPRs (automatic license plate readers) will have a more detrimental effect between the relationship of the community and the police than of the beneficial assistance due to the data they generate.

"Our federal government is unconcerned with the recovery of stolen vehicles, or catching insurance cheats," McGowan continued. "They are craving data on each and every one of us this data is sent to the West Virginia Intelligence Fusion Center which is under the direct control of the Department of Homeland Security."

McGowan went on to say that because the use of an LPR could cause Buckhannon residents to feel "under constant scrutiny," operation of the equipment is in violation of the First Amendment, which guarantees the right to peaceably assemble and protest against government actions or a government agency, like the Environmental Protection Agency.

"This pervasive surveillance undermines our ability to move throughout the community without being watched by our federal government," McGowan said. "As our lawyers and law enforcement officers here today should know, it is illegal and unconstitutional for the police to track a person's movement via a GPS without a warrant. The use of ALPRs for monitoring both the innocent and the criminal of Buckhannon is also a violation of the Fourth Amendment."

Because LPRs violate the First and Fourth Amendments, McGowan claimed, "it will be a matter of time before the City of Buckhannon is hit with a lawsuit regarding the use of this technology."

He said such a lawsuit would cause damage greater to the city than the benefit the city derives from its police department using an LPR "especially since the City states (in response to McGowan's Freedom of Information Act request) that as of Jan. 24, 2014, there had been zero traffic stops and zero citations issued from the use of ALPRs and that means zero revenue."

McGowan urged council members to require that the city's LRP unit be removed from Courtney's vehicle and to prohibit the future use of all LPRs within city limits.

Councilman Tom O'Neill thanked McGowan for his comments and said he, too, is concerned that using the LPR could cause an "erosion of public trust."

"Public trust is a very important thing for a community," he said. "People need to be able to feel that they are safe. That cuts both ways - there are arguments to be made on both sides and that's why it's a controversial issue.

"But I want to make sure that it's clear that your comments are not sourced in concern over our local law enforcement," O'Neill said.

"No, I come from a law enforcement background," McGowan replied. "My concern is not the abuse on the local side, my concern is the abuse on the national level."

O'Neill said the city needs to gather additional information about LPRs prior to making any kind of decision.

"Who has access to this data that is generated? I think this is something that deserves attention on our part and some vigilance," he said.

Councilman Ron Pugh said the use of an LPR is a violation of the Fourth Amendment.

"I, too, see that it could be very beneficial in some situations, but I am very concerned about what our government is doing subversively to us with the IRS and the NSA and who knows what else," Pugh remarked.

Councilman John Waltz also weighed in, saying that keeping an open dialogue with Gregory is crucial to the approach council takes in handling the issue.

"I think another thing we have to explore with Matt and his staff is if they believe this is critical and this is salient to them doing their work," Waltz said. "If they believe 'oh yeah, this is critical' then we have to evaluate it one way. If it's 'just a nice thing that we have and we can use,' we'll have to look at it a completely different way."

Councilman Dave Thomas said he was "somewhat embarrassed" that Council hadn't asked "the tough, penetrating questions" prior to the installation of the LPR unit.

"I'm at the position, quite frankly, to not use the equipment until we have further discussions about what are the pros and cons, the cost benefit analysis," Thomas said. "I'm sort of in the camp that we ought to suspend the use (of the LPR unit) until we have a more definitive discussion about it."

Thomas went on to say he was concerned that council had been "sort of sleeping on the job."

City Recorder Rich Clemens - who presided over Tuesday's meeting in the absence of Mayor Kenny Davidson, who was out of town - said he fully supported the BPD using the LPR unit "at least as of today."

"I think they're a labor-saving device," he said. "I'm more concerned about the health and welfare of my 12 grandchildren - where they might be or who might be near them - than anything else."

Clemens suggested council ask an expert from the West Virginia Intelligence Fusion Center - which is a wing of the WVSP, according to Gregory - to make an informational presentation at a future council meeting.

Gregory then took the podium.

"I've been a police officer with this city for 17 years," he said. "I've been your chief for almost 10. Even more than that, I've been a lifelong resident of the city of Buckhannon, and I'm currently raising two children in this community and their health and their welfare is of utmost importance to me."

Gregory said his mandate as police chief is to uphold the laws and protect not only residents of the city, but visitors to it.

"I take that mandate very seriously," he said. "The actions that I take for the department are for the good of this city, for the good of the police department, to help us do our jobs more efficiently and effectively, to make this community as crime-free as we can."

Despite Buckhannon's relatively small population, the city has "its fair share of issues," Gregory said, one of which is drug-related crimes, which are linked to theft and violent crimes.

LPRs have the potential to assist in curbing many of those crimes, he said.

Currently, 49 mobile LPR units are in operation via 27 different agencies throughout the Mountain State, Gregory said, adding that the units "are nothing more than a (police) force multiplier."

"It's doing nothing more than, if I were so motivated, with a notebook and a pen to drive around and from everywhere I travel in town from my plain view, writing down license plates in a notebook," Gregory said. "It's doing nothing more than what the human eye is doing, only it's doing it quickly and more efficiently."

Gregory said LPR units are justified by the plain view doctrine - a principle that provides that objects officers can see "in plain view" from an area in which they legally allowed to be can be seized without a search warrant.

Gregory said the LPR unit is especially useful to Buckhannon police officers because the city is a rural town fugitives from other regions have often seen as a safe haven.

"We have on many occasions had fugitives from other regions caught here," the chief said. "It is an ideal place to hide. If somebody is coming to this town to do harm, would we not want our police to do everything they legally can to prevent this?"

LPR units have been utilized in West Virginia for four years, Gregory added, saying that the assistant state attorney general told him that "at no time" have there been any instances of misuse or abuse by any law enforcement agency.

In an attempt to wrap up the discussion, Clemens suggested Gregory seek out an expert who would be willing to come to a future meeting and answer some of the questions raised by McGowan and council members.

"I really don't think we can solve this issue tonight," Clemens said.

Pugh - who said he "wasn't aware council was under any kind of time constraint" - asked Gregory whether he would object to GPS units being installed in city police cruisers so the Upshur County Communications Center could keep in constant contact with officers "and know where they each were at any given moment, on any given day."

"No, I wouldn't object to that," Gregory replied. "What do they have to hide? They're out there doing their duty."

Clemens told Pugh that he didn't believe the question was relevant.

"I think that's a totally different concept here," Clemens said.

"It's not that much totally different," Pugh responded.

Gregory, however, sided with Clemens.

"I think it is, because an LPR isn't tracking (license plates) 24 hours a day, seven days a week it's one unit that works eight hours a day, five days a week."

City Attorney Dave McCauley - who had remained silent throughout the course of the discussion - chimed in in support of retaining the LPR unit. He said he'd recently learned there are 200 people residing in Upshur County who are registered sexual offenders.

"Every single one of those individuals is now required to register their vehicles, and those vehicle plates are entered in this interstate database and if there's a child abduction or something of that sort, would those individuals perhaps be considered first as possible abductors? Absolutely they are," McCauley said.

"I'm not trying to weigh in one way or another here, but I don't think we should diminish the utility of this technology because I've got five kids and I've got five grandchildren, three of which are within a mile of where I'm sitting right now, and if somebody snatches one of those kids, and this community says 'no' to that technology that might have worked the wonders of technology to locate that child before something terrible happened to them, then digest that as you make that decision."